228 Federal Law Review Volume 44
The High Court’s scepticism about legislative intent has attracted a great deal of
attention, from both supporters and critics.
However, the High Court has a more
fundamental commitment with regard to statutory interpretation, one that has received
far less scrutiny. This c ommitment arises out of the Court’s claim t hat the ultimate aim
when interpreting a statutory provision is to ascertain the meaning of the words
contained in the provision. One way of viewing the controversy about legislative intent
is that it is about what determines the meaning of those words. Is their meaning
constituted by Parliament’s intentions (to convey certain information via the use of those
words), or is it instead fixed by the application of widely accepted principles of statutory
interpretation? Viewed in this way, the debate about legislative intent takes place within
a framework that has already been structured by a commitment to ascertaining the
meaning of the words contained in the statute.
My goal in this article is to challenge the High Court’s claim that the ultimate aim of
statutory interpretation is to ascertain the meaning of the words contained in the
provision being interpreted. I shall call this claim ‘the meaning thesis’, and I shall argue
that it cannot account for important features of the practice of statutory interpretation.
In particular, it can account for only some of the ways in which statutory provisions
interact with other legal norms (including ot her stat utory provisions). I shall contend
that this provides a powerful reason to reject the meaning thesis.
Of course, ascertaining the meaning of the words contained in the pr ovision being
interpreted is an important step in the interpretive process. However, I shall argue, the
High Court is wrong to claim that it represents the ultimate aim of statutory
interpretation. This gives rise to an obvious objection, even before I give my reasons fo r
rejecting the meaning thesis ─ namely, that it is not possible for the High Court to be
mistaken about such a fundamental aspect of Australian law. In Section II, I seek to show
that this objection is misguided and, in doing so, to clarify the argumentative strategy I
shall employ in the article.
In Section III, I show that the High Court does indeed endorse the meaning thesis,
and I suggest some reasons why that thesis may appear attractive. Then, in Section IV, I
present an initial objection to the Court’s position. I argue that, given its scepticism about
legislative intent, the High Court cannot account for some uncontroversial features of
statutory interpretation ─ such as the presumption of mens rea that is employed when
interpreting criminal offence provisions ─ consistently with the meaning thesis.
Moreover, even if the Court were to abandon its scepticism about legislative i ntent, its
See, eg, Richard Ekins a nd Jeffrey Goldsworthy, ‘The Reality and Indispensability of
Legislative Intentions’ (2014) 36(1) Sydney Law Review 39 (who are highly critical of the High
Court’s scepticism) a nd Joseph Campbell and Richard Campbell, ‘Wh y Statutory
Interpretation is Done as it is Done’ (2014) 39 Australian Bar Review 1 (who are broadly
sympathetic to the High Court’s position).
I do not mean to imply that someone who is not sceptical about legislative intent must regard
it as contributing to the meaning of the words in the statute. This is, perhaps, the standard
approach (see, eg, Ekins and Goldsworthy, above n 2), but one might believe that legislative
intent is relevant independent of any contribution it makes to the meaning of the words in
I believe that many academic commentators also accept the meaning thesis, though I shall
not seek to substantiate that claim in this article. If I am right, the difficulties for the meaning
thesis that I identify pose problems, not only for the High Court, but for much academic
writing about statutory interpretation as well.